A legal scholar lambastes a Truthout article claiming that it was for preserving slave-patrol militias.

But these proposed amendments were not a quid pro quo for ratification, since none of those advocating amendments, like Henry, voted for ratification. Thus, there is no evidence — no historical record — for Hartmann’s key proposition that the Second Amendment (which was not written until 1789) was somehow a prerequisite for the ratification of the Constitution in 1788.

Perhaps Hartmann thinks that the Second Amendment was necessary for Virginia to ratify the Bill of Rights. But this is also completely wrong. In 1789 Rep. Madison proposed a series of amendments that included what is now the Second Amendment. Congress endorsed 12 amendments, and 10 were ratified as the Bill of Rights. So, maybe Hartmann thinks that Virginia would not have ratified the other nine amendments if it had not been for the Second Amendment. But, each amendment was ratified separately. Thus, if this is Hartmann’s theory, Virginia should have only ratified the Second Amendment. But that did not happen.

Hartmann’s “history” gets even more confused when he argues that the purpose of the Second Amendment was to protect slave patrols (which he confuses with the militia) and that James Madison, Patrick Henry and George Mason all teamed up to do this. He argues that Madison changed the text of the Second Amendment to please Mason and Henry. This is almost amusing. Both Henry and Mason were Madison’s political enemies, and neither was in Congress when Madison drafted the Bill of Rights. In fact the wording changes took place in the House and Senate. Nor did Mason and Henry have much to do with writing the Second Amendment since they were not in Congress. When the Second Amendment was proposed, Henry opposed it (along with the rest of the Bill of Rights).

The idea of Madison, Henry and Mason teaming up in 1787 or in 1789 (when Madison wrote the Second Amendment) would make an entertaining Saturday Night Live skit. Madison and Henry could not stand each other. They were political opponents throughout this period. After 1787 Mason joined Henry in opposing the Constitution (which Madison worked so hard to create), and both Henry and Mason opposed the Bill of Rights. Indeed Virginia was the last state to ratify the Bill of Rights (in 1791) because of Henry’s opposition to the Bill of Rights. Henry wanted to scuttle the whole Constitution and not make it better. So he opposed all the amendments.

Thus, Hartmann’s “conspiracy” falls flat because a conspiracy would require that the people allegedly involved talked to each other.

This is not to say that slave patrols were not important to the South and slavery. They surely were. But the Second Amendment was directed solely at the federal government, which was prohibited from disarming state militias, and thus allowed the states to arm their militias if the federal government did not do so. Even if the amendment did not exist and the national government had abolished the state militias, the states would have been free to create their own slave patrols, just as they can create police departments and other law-enforcement agencies.

Thus, the Second Amendment does not and was never intended to affect local law enforcement at all. It only prohibits the national government from disarming the state militias. The amendment had nothing to do with state police powers, which were the basis of slave patrols, and there was no federal interference with state criminal justice or policing until the 20th century. No one in 1789 would have imagined the national government interfering with state policing powers. However, the framers did imagine that the national government might help recover fugitive slaves, and Congress passed two laws, in 1793 and 1850, to do just that. But these laws supplemented powers of the states to hunt fugitive slaves.